NCHER Winter Legal Meeting
Mark W. Brennan
January 24, 2014

• In an ever-changing technological landscape, organizations are increasingly at risk under the
Telephone Consumer Protection Act (TCPA)
• Regulators and plaintiffs’ class-action attorneys are targeting alleged TCPA violations
• With so much at stake, organizations need to know about the latest developments and prepare appropriate compliance strategies to minimize the risk of a TCPA claim or enforcement action www.hoganlovells.com
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• Background on the Telephone Consumer Protection Act of 1991 (“TCPA”)
• Current TCPA Trends
• The Communication Innovators (“CI”) Petition and
NCHER’s Efforts
• New TCPA Requirements
• Other Pending TCPA Petitions
• FTC Activity
• State Activity
• Issues to Watch in 2014
• What You Can Do www.hoganlovells.com
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• Congress enacted the TCPA specifically to curb aggressive telemarketing practices.
– Using automatic dialing equipment to make unsolicited calls to random or sequential telephone numbers.
– Calling sequential telephone numbers in a way that ties up a block of telephone numbers and creates public safety risks.
– Concerns about telemarketers shifting calling costs to wireless consumers.
• Codified at 47 U.S.C. § 227.
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• Imposes a number of restrictions on telemarketing calls, faxes, and other outbound communications. Some restrictions apply to non-telemarketing calls, including communications related to debt collection.
• Implemented by the Federal Communications
Commission (“FCC”).
• FCC rules available at 47 C.F.R. § 64.1200 et seq.
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• Two TCPA provisions have become increasingly problematic for organizations as more and more consumers rely exclusively or primarily on wireless telephones.
• First, the TCPA prohibits callers from using an “automatic telephone dialing system” (“autodialer”) or a prerecorded or artificial voice message to call, inter alia , wireless telephone numbers, absent an emergency or the “prior express consent” of the called party.
– Applies regardless of the content of the call.
– The FCC and some courts have determined that this restriction applies to both voice calls and text or short message service (“SMS”) messages.
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• Second, the TCPA separately prohibits callers from using a prerecorded or artificial voice message to call residential telephone numbers without prior express consent.
• Several exceptions to this restriction:
– Calls that do not include a solicitation or constitute telemarketing ( e.g.
, pure debt collection calls)
– Calls not made for a commercial purpose
– Emergency calls
– Calls made by or on behalf of a tax-exempt nonprofit organization
– Certain healthcare calls subject to HIPAA www.hoganlovells.com
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• The TCPA defines an autodialer as “equipment which has the capacity
– (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
– (B) to dial such numbers.”
• The FCC has taken the position that (at least some) predictive dialers are “autodialers,” which has created significant confusion over the application of the TCPA to new technologies (more on this later). www.hoganlovells.com
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TCPA Violations Can Be Costly
• Statutory damages of $500 per call , potentially up to
$1,500 per call for knowing or willful violations .
• Injunctive relief also available.
• Class actions allowed, no cap on damages, no de minimis exception:
– 1,000 calls = at least $500,000, potentially $1.5 million
• Even if the call is not answered and no message is left, plaintiffs can still seek damages.
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Organizations may be vicariously liable for a vendor’s actions
• Federal common law principles on vicarious liability apply . . .
– Can be liable for the actions of an agent who is acting on the principal’s behalf and subject to the principal’s control.
• . . . including principles of apparent authority and ratification
– Can be liable if third-party beliefs about an actor’s authority to act as an agent are reasonable and traceable to the principal.
– Can be liable if one knowingly accepts the benefits of the acts, e.g. accepting payment.
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• There has been a dramatic shift in the use of wireless telephones over the last decade.
• Approximately two out of five ( 39.4% ) American homes are wireless-only households.
• Another 15.7% of households receive all or almost all calls on wireless telephones despite also having a landline telephone
( “wireless-mostly”).
• Approximately 65.6% of 25-29 year-olds and 59.9% of 30-34 yearolds live in wireless-only households (many never had a landline).
• More than half of Americans whose incomes are below the poverty line rely only on wireless services.
• Consumers can easily “port” their landline number to their wireless device. www.hoganlovells.com
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Wireless rules increasingly important, particularly when serving younger Americans.
50
45
40
35
30
25
20
15
Percentages of adults and children living in households with only wireless telephone service or no telephone
Children with wireless service only
10
5
Adults with no telephone service
0
Jan-Jun
2003
Jan-Jun
2005
Jan-Jun
2007
NOTE: Adults are aged 18 and over; children are under age 18.
SOURCE: CDC/NCHS, National Health Interview Survey.
Jan-Jun
2009
Adults with wireless service only
Children with no telephone service
Jan-Jun
2011
45.4
38.0
Jan-Jun
2013 www.hoganlovells.com
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• Extensive litigation (especially in the debt collection context) over the meaning of “prior express consent”
– Do they have to give you the specific telephone number?
– What happens if they change telephone numbers?
– Do you have to disclose specifically that you may use autodialers and prerecorded messages?
– Do you have to disclose specifically that you may send text messages (not just voice calls)?
– Skip-tracing?
– Do you have to disclose specifically that you may engage in telemarketing?
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• Extensive litigation over the meaning of “autodialer”
– Predictive dialers?
– Preview dialers?
– Multiple-mode dialers?
– Auto-generated text message replies?
– Representative-assisted IVR systems?
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• CI filed a Petition for Declaratory Ruling with the FCC in
June 2012 regarding the applicability of the TCPA to predictive dialers.
• CI requested confirmation that predictive dialers that are not used for telemarketing and do not have the current ability to general and dial random or sequential numbers are not “autodialers.”
– If the equipment must be modified to be able to dial random or sequential numbers, it should not be considered an autodialer unless modified.
• FCC sought comment on the petition, and the petition remains pending.
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• NCHER and other leading associations have been engaging with FCC staff to support the CI petition.
– Several meetings and telephone calls with high-level FCC staff
– Numerous written advocacy filings
• NCHER has been highlighting the substantial benefits from using predictive dialers and other new technologies to reach students on their wireless telephone numbers.
• The advocacy is making a difference.
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• New FCC TCPA rules went into effect in October
2013 requiring prior express written consent for:
– All autodialed or artificial or prerecorded telemarketing calls to wireless telephone numbers
• Includes text/SMS messages
– All artificial or prerecorded telemarketing calls to residential telephone numbers www.hoganlovells.com
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• Written consent must be signed (can be electronic with E-
SIGN Act) and be sufficient to show that the consumer:
1.
Received “clear and conspicuous disclosure” that the consumer will receive prerecorded and autodialed telemarketing calls from a specific seller; and
2. Agrees unambiguously to receive such calls at a telephone number that the consumer designates
• Consent can given by email, verbally, through a website, or in a paper document
• Cannot require consent as a condition of providing any goods or services www.hoganlovells.com
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• Must implement an automated, interactive opt-out mechanism that allows a consumer to opt out of receiving additional calls immediately during a call
• Must automatically process revoked consent – a single call after withdrawal is a violation
• Other changes to the law include: how parties calculate the call “abandonment” rate; an exemption for certain HIPAA-regulated calls
• Three parties filed petitions for reconsideration of the FCC decision adopting the new written consent rules; the FCC has not yet acted on the petitions www.hoganlovells.com
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Several parties have also filed petitions for declaratory rulings or clarifications of the FCC’s TCPA rules, including:
• GroupMe (group text messaging and third-party consent)
• Cargo Airline Association (exemption for package delivery notifications)
• YouMail (mobile app “virtual receptionist”)
• GlideTalk (text invitations to video message service) www.hoganlovells.com
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• A Coalition of Mobile Engagement Providers (effect of new TCPA rules on past consents)
• Direct Marketing Association (disclosure rules)
• PACE (one-click dialing)
• United Healthcare (reassigned wireless numbers) www.hoganlovells.com
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• The Federal Trade Commission also regulates telemarketing through its Telemarketing Sales Rule
(“TSR”).
– Aggressive enforcement
– Pursuing technological solutions
• FTC does not have general jurisdiction over nontelemarketing calls.
• No private right of action under the TSR www.hoganlovells.com
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• States also regulate telemarketing and automated calling activities.
• 2012: NY law imposing new restrictions similar to the FCC’s Robocall Report and Order.
– Focused on prerecorded voice telemarketing calls.
– Extends additional telemarketing laws to out-ofstate callers, including registration requirements.
• 2013: Illinois law imposing statutory damages and recordkeeping requirements on autodialed calls.
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• How will the FCC apply its new “prior express written consent’ requirements?
• What does “autodialer” mean?
• To what extent does the TCPA apply to mobile device applications, mobile financial services, and other new technologies and services?
• What happens if someone changes his or her telephone number?
• Will the number of TCPA claims continue to skyrocket?
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• Assessing your existing data
– What level of consent can you demonstrate?
– Have you obtained any additional consents under the new rules?
• Reviewing intake and account forms, calling scripts, and other consent channels
– Are the disclosures adequate?
– Are the telephone number types specified?
– Is your privacy policy sufficient?
• Analyzing the available opt-out mechanisms www.hoganlovells.com
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• Reviewing calling policies and manuals
• Preparing training modules for employees
• Analyzing vendor agreements for TCPA compliance and adequate protection (including vicarious liability issues)
• Assessing call monitoring and recording compliance issues
• Evaluating management of customer number changes
• Ensuring adequate record retention
• Obtaining insurance
• Monitoring TCPA litigation developments and pending
FCC proceedings for filings and decisions of interest www.hoganlovells.com
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Questions?
Mark.Brennan@HoganLovells.com
www.hoganlovells.com
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